Tuesday, September 04, 2007

The argument: The Mishnah Berurah chose to follow the Mishkenos Yaakov’s shitah (that most Rishonim do not accept shishim ribo as a criterion) over the Bais Ephraim’s, and therefore we should not accept shishim ribo as a criterion of a reshus harabbim.

The rebuttal:● Major poskim have stated that it is obvious that the Mishnah Berurah did not see the Bais Ephraim, and had he seen it, he would not have accepted the Mishkenos Yaakov’s opinion so readily (Toldos Shmuel, 3:81:7, 3:86:8; Bais Av, 2:5:2; Divrei Yatziv, 2:173:1, and Even Yisroel, 8:36).

Some have argued that it is presumptuous to assume that had the Mishnah Berurah seen the Bais Ephraim, he would have changed his mind.This is incorrect for the following reasons:○ As mentioned, great poskim have argued this point.○ The fact is the Mishnah Berurah mentions the Bais Ephraim’s other sefarim [Sharei Ephraim, Mateh Ephraim] extensively, so the question begs why didn’t he at least mention that the Bais Ephraim disagrees with the Mishkenos Yaakov? The answer is that the above mentioned poskim were correct because the Mishnah Berurah himself stated that he didn’t have the Shu”t Bais Ephraim (Bi’ur Halachah 208:9, s.v. Eino M’Vorech).

The argument: It’s not that the Mishnah Berurah disagreed with the Bais Ephraim and the overwhelming majority of poskim who accepted shishim ribo, he just maintained that a Baal Nefesh should not rely on the criterion of shishim ribo.

The rebuttal:● The overwhelming majority of poskim accepted shishim ribo as a criterion of a reshus harabbim and allowed that even a Baal Nefesh could rely on it.

The argument: The Mishnah Berurah knew the Rishonim on both sides of the machlokas (for and against shishim ribo) and yet chose to be stringent.

Some have argued that even if the Mishnah Berurah would have known that the overwhelming majority of Rishonim maintain that shishim ribo is a criterion, he would nevertheless not have accepted it as a fundament of a reshus harabbim.This is incorrect for the following reason:○ The Mishnah Berurah was utilizing the Mishkenos Yaakov’s argument that since the majority of Rishonim objected to shishim ribo, we can’t accept it as a fundament of a reshus harabbim. However, at this time, we know the reverse is true; the overwhelming majority of Rishonim accept shishim ribo as a criterion. Consequentially, by the Mishinah Berurah’s own argument, there is no reason to believe he would not recognize shishim ribo as a criterion of a reshus harabbim.